I. Introduction
This article makes use of a simple observation in order to examine the approach taken by the Chinese Communist Party (CCP) to rule-based governance. As this article demonstrates, CCP ideologues assign formal rules, including the CCP Constitution, an important role in the Party’s internal governance structure.Footnote 1 This is ironic because a central justification for the CCP’s control over the judiciary and other state organs relies on (often implied) scepticism about the viability and benefits of formal rule-based legal processes, including formal constitutional law.Footnote 2
This observation provides a useful entry point for analysing the role of rule-based governance in the CCP’s governance project and in illiberal legal and political thought more generally. On the highest level of abstraction, the role of rules within the Party’s governance project can be conceptualised through a dichotomy between ‘legal formalism’ and ‘anti-formalism’. In this dichotomy, legal formalism (or simply ‘formalism’) stands for the belief that rules can and should restrict decision-making by screening off undesired considerations from the decision-making process.Footnote 3 Anti-formalism, in contrast, connotes a theoretical practice, which explicitly challenges legal formalism in one form or another.Footnote 4 A common formalist argument holds that the underlying proposition of formalism is uncontroversial and that ‘legal formalism’ itself is a moot object of criticism.Footnote 5 A common anti-formalist strategy consists of insisting that, despite its mainstream nature, ‘legal formalism’ falsely denies or plays down the role of choice in rule-application.Footnote 6
Although the concept of ‘formalism’ is sometimes used as a loosely defined caricature in legal theoretical debates,Footnote 7 the concept itself is ideologically meaningful. A European or American scholar extolling the virtues of formalism typically seeks to promote accountability, transparency, equality, and checks and balances within the government.Footnote 8 In contrast, a European or American critic of formalism typically argues that formalist language prompts decision-makers to disregard socially important aspects of judicial decisions, while at the same time disguising the actual ideological and political biases behind judicial decisions.Footnote 9 Since the early twentieth century, anti-formalist critique has often been motivated by a self-consciously progressive (liberal or socialist) political agenda.Footnote 10
This article demonstrates that in the Chinese context, ‘formalism’ (xingshi zhuyi) and its critiques have different uses than in Europe and America. In particular, formalist language supports Party leaders’ attempts to constrain lower-level Party cadres’ uses of power through formal rules.Footnote 11 Formalism also serves to portray the Party leadership as rational and scientific.Footnote 12 Formalist conceptions are particularly prominent in Party ideologues’ writings on the interpretation of ‘intraparty regulations’ (dangnei fagui).Footnote 13 Anti-formalist arguments, in contrast, legitimise the Party’s leadership over the Chinese judiciary and other state organs and justify the Party’s extra-legal uses of power and, arguably, conduct against the Party’s own regulations.Footnote 14
This article does not take sides in the debate between formalism and anti-formalism, nor does it pass a judgement on whether ‘legal formalism’ is an appropriate target of criticism in the first place.Footnote 15 Instead, it argues that both formalist and anti-formalist arguments are necessary for the CCP’s governance project. As Max Weber pointed out, modern political parties seek to regulate party members’ conduct through formal – indeed, ‘formalist’ – rules.Footnote 16 Further, the CCP leadership seeks to formalise the Party’s internal governance structures.Footnote 17 At the same time, the CCP cannot rely on formal rules alone for its governance project, which is (formally) premised on enforcing a ‘people’s democratic dictatorship’ in China.Footnote 18 The very purpose of a dictatorship is its ability to suspend formal rules when political expediency so requires (see Part V). This is arguably not only the case with formal state laws, but also with formal political rules – that is, with the same rules that formally constitute the Party as a bureaucratic organization and govern its decision-making processes. Just as is the case with formal legal rules, there is no reason to assume that intraparty regulations are meant to be applied in a formalist manner, even at the lower levels of the Party hierarchy. The formalist approach to the CCP’s intraparty regulations would namely encourage lower-level Party cadres to interpret rules ‘formalistically’ against higher-level Party cadres’ situational judgement calls. Formal rules, no matter how they are constituted, do not serve the Party leadership’s interests in all situations. At the same time, leaders of a vast bureaucratic organization such as the CCP cannot do without formal rules and the notion of formalist rule application.
In contrast to some CCP-endorsed literature,Footnote 19 this article does not paint a harmonious picture of the Party’s approach to rule-based governance. Instead, it describes the oscillation between formalism and anti-formalism as an ever-present contradiction at all levels of Party governance. In addition to shedding light on a sparsely studied aspect of the Chinese party-state,Footnote 20 a focus on contradictions offers a chance to reconsider certain seminal descriptions of the role of rule-based governance in totalitarian and authoritarian regimes.Footnote 21 In particular, it must be asked whether the illiberal ‘dual state’ – a regime that comprises separate spheres of formal state law and politics – can rely on formalism to govern political conduct.Footnote 22 Conversely, it must also be questioned whether the ‘modern’ illiberal political sphere can be free of formalist rule application. This article answers both questions in the negative.
Today’s People’s Republic of China (PRC) differs from twentieth-century totalitarian and authoritarian regimes in many crucial ways. Most obviously, the Chinese party-state does not claim a monopoly over information or the economy.Footnote 23 Nevertheless, CCP ideologues share with the earlier totalitarian and authoritarian regimes an ‘illiberal’ tendency to prioritise political leadership over formal rule-based processes.Footnote 24 The particular dichotomy discussed in this article is therefore relevant to the study of all regimes, which combine rationalist, bureaucratic governance methods with illiberal resistance to formal legal processes.
This article is organised as follows. Part II describes uses of anti-formalism in statements about the Party’s leadership over the judiciary and other state organs. Part III turns to examine formalism within the Party’s internal governance. Part IV illustrates the uses of formalism through texts on the interpretation of CCP intraparty regulations. Part V discusses reasons for the oscillation between formalism and anti-formalism in Party ideology and considers its implications for the study of illiberal regimes beyond the Chinese context. Part VI concludes the article.
II. Anti-formalism and Party leadership
Conceptualising the CCP’s governance strategies through a dichotomy between formalism and anti-formalism may seem surprising, given that it is more common to emphasise the anti-formalist – and in particular, the instrumentalist and pragmatist – nature of the Party’s approach to law.Footnote 25 Indeed, on its face the CCP’s political ideology is explicitly and self-consciously anti-formalist. Formalism – ‘doing things for form’s sake’ – is one of the four forms of decadence opposed by the Party leadership.Footnote 26 As a form of decadence, formalism is associated with an unnecessarily bookish and ‘bureaucratic’ working style.Footnote 27 According to Party ideologues, formalism prevents CCP cadres from implementing the Party’s policies creatively in accordance with local realities.Footnote 28 Instead of relying on ‘books’, Party cadres ought to ‘seek truth from fact’.Footnote 29 A prominent CCP textbook on the socialist rule of law conception, published in 2009, extends the critique of formalism into the legal field, instructing Party members to ‘resolutely prevent and overcome formalism’ in law enforcement – without, however, explaining what formalism in law enforcement entails.Footnote 30
A central aspect of early twentieth century continental European and American critique against formalism targeted the formalists’ (supposed) denial of the role of political choice in adjudication.Footnote 31 The CCP textbook on the socialist rule of law conception reproduces some of this critique. The textbook explains that ‘there has never existed a judiciary that was truly independent from politics’ and that ‘the political has always maintained its control and influence over the judiciary’.Footnote 32 The textbook makes this argument with direct reference to American legal realism and pragmatism, implying that political leadership of the judiciary is an indispensable aspect of any government.Footnote 33
Another form of critique against formalism in Europe and America centred on the (supposedly formalist) method of deciding cases through the textual analysis of meaning without regard for social facts and policies.Footnote 34 Echoing this critique, the above-mentioned CCP textbook instructs law enforcement officials to ‘serve the overall circumstances’ (fuwu daju).Footnote 35 ‘Serving the overall circumstances’ stands for considering all socialist desiderata in adjudication, including the promotion of social justice, social harmony and stability, the adherence to various Party doctrines, the protection of the Party’s efforts to safeguard national security – and even the strict application of state laws.Footnote 36 The textbook also urges Party cadres to prioritise the ‘political and social effect’ of law enforcement instead of its ‘legal effect’.Footnote 37 According to the textbook, the (as such undefined) ‘political and social effect’ of a decision must provide the ultimate criterion for law enforcement.Footnote 38
Similar arguments can be seen in other texts justifying Party leadership. According to an article published in Seeking Truth, the CCP’s main theoretical journal, the Western emphasis on ‘formal justice’ [xingshi zhengyi] turns adjudication in Western courts into a contest of litigation skills.Footnote 39 The Western notion of judicial independence stresses that judges and jury members may not be influenced by ‘the outside world’ [waijie].Footnote 40 Consequently, adjudication in the West is unable to take note of the actual questions of substantive inequality.Footnote 41 (The author of the article also maintains, rather confusingly, that in reality American judges cannot escape the outside influence of political parties and financiers.)Footnote 42 Another example of the anti-formalist justification of the Party’s leadership of the judiciary is provided by Xu Xianming, China’s Deputy Procurator General and a prominent legal theorist.Footnote 43 Xu explains that the Party must be above the law (as well as ‘in the middle of the law and under the law’), because the law is inevitably ‘an affirmation of past relations’.Footnote 44 Instead of looking back to formal legislation, the Party must grasp the laws of social development in real time.Footnote 45
Anti-formalist arguments are also advanced in theoretically ambitious Chinese legal scholarship, where they sometimes serve to legitimize the Party’s leadership of the judiciary and other state organs. As was true of the sociological and realist critiques of early twentieth century Western legal thought, Chinese sociological jurisprudence describes ‘legal formalism’ as a theoretically outdated, socially out-of-touch foreign tradition.Footnote 46 According to Jiang Shigong, a prominent constitutional law scholar at Peking University, ‘the state of Chinese legal scholarship has been especially preoccupied with legal formalism in order to quickly adapt to international standards’.Footnote 47 Jiang argues that Chinese scholars have to ‘break away from legal formalism’ and understand constitutional questions against ‘China’s political reality, history, and cultural traditions’.Footnote 48 The fact of Party leadership is a central part of this political reality.Footnote 49
Anti-formalism also allows Chinese legal scholars to argue that the Communist Party brings valuable outside information to the insular world of legal rules. Zhu Suli, the former dean of Peking University Law School and an early promoter of sociological jurisprudence in China, urges judges ‘to settle disputes well’ and ‘not just … abide by their duties and implement extant legal rules’.Footnote 50 Zhu, who is a critic of ‘simplistic Western notions of judicial independence’,Footnote 51 suggests that Party influence in the judiciary has evolved as a response to China’s social needs and, therefore, functions well in the Chinese context.Footnote 52
In addition to the ideological and theoretical critiques of ‘formalism’, the institutional design of China’s one-party system sets the Party against legal formalism in several concrete ways. For instance, the newly established state organ, the National Supervision Commission (NSC), has been tasked with the holistic, extra-legal supervision of Party cadres and state organ employees in anti-corruption matters. Such supervision, as well as the enforcement of Party discipline in general, is meant to occur free of the constrains of the Chinese judicial process.Footnote 53 The supervision commissions make use of the Party’s discipline inspection facilities and methods,Footnote 54 which reportedly need not comply with formal legal rules.Footnote 55 The Chinese state media have applauded the self-consciously ‘political’ approach of the new supervisory processes, suggesting that it enables anti-corruption investigations to address the root causes of corruption better than legal processes.Footnote 56
III. Formalism in the Party’s internal governance
Describing the Party’s approach to rule-based governance through anti-formalism, which prioritises Party leadership over the legal system, is consistent with seminal descriptions of twentieth-century totalitarian and authoritarian governments. In Hannah Arendt’s analysis, for instance, twentieth-century totalitarian and authoritarian regimes were characterised by a demand for unlimited power. For this project, ‘even the most unjust legal rules’ were an obstacle.Footnote 57 Ernst Fraenkel, a German jurist and political scientist, described the political sphere – the so-called ‘Prerogative State’ – in Nazi Germany in similar terms as ‘a vacuum as far as law [was] concerned’.Footnote 58 Fraenkel argued that in Nazi Germany the ‘Prerogative State’ was able to trump the ‘Normative State’ of formal law whenever political leaders so decided.Footnote 59 Fraenkel’s analysis was informed by Carl Schmitt’s view of ‘the political’.Footnote 60 For Schmitt (who eventually joined the German Nazi Party), ‘the political’ was superior to the normative sphere of formal constitutions and laws because the normative order ultimately depended on existential political decisions.Footnote 61 Schmitt thought the purpose of dictatorial intervention was specifically to discard all legal restrictions.Footnote 62 He also argued that ‘the political’ was ultimately unconstrained by rules in all political systems, including liberal democracies.Footnote 63
Helpful as these accounts are for understanding illiberal legal and political thought, seeing political leadership as antecedent to formal rules fails to capture the paradoxical nature of the illiberal governance project in the Chinese context and, it can be argued, in other illiberal regimes as well. Without suggesting too close a similarity between the PRC and twentieth-century totalitarian governments, it can be noted that in reality the latter regimes also had a complicated relationship with rule-based governance.Footnote 64 Ernst Fraenkel, for instance, acknowledged that there existed rules within the political sphere even in Nazi Germany. Fraenkel, who otherwise believed that the ‘Prerogative State’ was devoid of law, alluded to the internal regulations of the German Nazi Party, which could ‘transfer entire spheres of life from the jurisdiction of the Normative State to the Prerogative State’.Footnote 65 Fraenkel made use of Max Weber’s views about political organisations to understand these rules.Footnote 66 According to Weber, political parties (and other modern organisations) could become rationalized to a certain extent through bureaucratic processes, which built upon rational legal authority.Footnote 67 Weber defined rational legal authority in formalist terms. Under this form of authority, ‘legally relevant characteristics of the facts [were] disclosed through the logical analysis of meaning’, after which ‘definitely fixed legal concepts in the form of highly abstract rules [were] formulated and applied’.Footnote 68 At the same time, Weber believed the ultimate ends of bureaucratic conduct were not decided in a rational process but rather in an irrational struggle between different ends.Footnote 69 Following Weber, Fraenkel thought that the Nazi government combined rational bureaucratic methods with irrational ones.Footnote 70
CCP ideologues commonly emphasise the rationalist nature of the Party’s governance project.Footnote 71 Despite justifying Party leadership of the judiciary through various anti-formalist arguments, the Party also supports the construction of a legal system that adheres to the values of legal formalism. For instance, although the above-described CCP textbook on the socialist rule of law objects to ‘formalism’ (xingshi zhuyi), it also endorses the ‘formal conception’ (xingshi yiyi) of the law and instructs Party cadres to construct a gapless and internally coherent socialist legal system.Footnote 72
Rule-based formalism is also an integral part of the Party’s internal governance. The attempt to govern the CCP through formal rules dates back to the political struggles between Party leaders in the 1920s and 1930s.Footnote 73 After several false starts, Party leaders reiterated the need to govern the Party through regulations in the beginning of the Reform Era in 1978.Footnote 74 Over the following decades, the Party issued and revised a number of regulations on its internal discipline.Footnote 75 Today, a stated aim of the CCP leadership is ‘to cage’ Party cadres’ uses of power within a system of formal intraparty regulations,Footnote 76 which mostly govern Party members’ conduct and relations between various Party organs.Footnote 77 The CCP has embarked on a far-reaching effort to systematize the Party’s internal regulations.Footnote 78 Among other things, the Party has sought to decrease the ambiguity of intraparty regulations and clarify the competences among different CCP organs to issue these regulations.Footnote 79
Party documents and (mainstream) legal scholarship on intraparty regulations paint a bright picture about the possibilities of rule-based governance within the Party’s internal governance. In an extensive study on intraparty regulations, Song Gongde of the Central Party School in Beijing describes the CCP’s system of intraparty regulations as an essentially ‘legal’ model of governance.Footnote 80 Song explains that intraparty regulations are (or at least ought to be) generally applicable, abstract rules, which are sufficiently clear to their intended subjects.Footnote 81 According to Song, intraparty regulations prescribe in clear cut-terms what Party members may do, what they must do and what they are not allowed to do.Footnote 82 In Song’s view, intra-Party regulations constitute a ‘logical structure’ that solves the ‘irrationalist problem of arbitrary decision-making’ within the PartyFootnote 83 and guarantees the ‘determinacy’ of the relationships between CCP organs.Footnote 84 Using ‘simple and accurate language’, intraparty regulations also set out Party organs’ powers and responsibilities and Party members’ duties and rights.Footnote 85 Intraparty regulations ‘must be followed by the entire Party without exceptions’, according to Song.Footnote 86 Finally, Song argues that intraparty regulations enable the equal treatment of like cases and make Party life ‘fair and equal’.Footnote 87
Similar descriptions abound in Chinese scholarship on intraparty regulations. Wang Zhenmin of Tsinghua University (who also holds a high position in Beijing’s liaison office in Hong Kong) elucidates the nature of the Party’s internal regulatory system through the principles of legality and rationality.Footnote 88 Under these principles, Party organs may not exceed their authority when adopting intraparty regulations; intraparty regulations and Party organs may not violate the CCP Constitution, hierarchically superior intraparty regulations, or the PRC constitution and state laws; intraparty regulations must adhere to the Party’s theories, lines, principles and policies; and these regulations must be adopted in accordance with prescribed administrative processes.Footnote 89
The image of rule-based governance emerging from the above-described accounts can best be described as Weberian rational legal authority, which relies on legal formalism as its method of rule-application.Footnote 90 Indeed, some Chinese scholars have found their frame of reference for describing intraparty regulations directly in Max Weber. Citing Weber’s views on the legal rationalization process, Zhang Xiaojun of Shanxi Normal University, for instance, contends that ‘the Party regulations are developing increasingly along the line of the rule of law and assuming legal rationality’.Footnote 91 Weberian language is apparent in commentary on intraparty regulations even when his texts are not explicitly cited.Footnote 92
The formalist approach to intraparty regulations is not without its dissenters within Chinese legal academia. Perhaps most prominently, Jiang Shigong, the constitutional law scholar at Peking University, has been sceptical about formalism with regard to both constitutional law and intraparty regulations. Jiang argues that the Party should pay more attention to the virtues and spiritual pursuits of its members instead of resorting to old Eurocentric regulatory models.Footnote 93 Chinese leaders have also occasionally alluded to the benefits of ‘the rule of virtue’ in governance, contrasting such virtues with the ‘rule of law’.Footnote 94 The juxtaposition of ‘the rule of law’ and ‘the rule of virtue’ implies that Chinese leaders view legal processes as partly deficient, or at least insufficient, for governance.Footnote 95 On the whole, however, anti-formalist critiques are rare in Chinese commentary on intraparty regulations.
IV. Formalism and the interpretation of intraparty regulations
The previous two sections have argued that the critique of rule-based governance is more emphatic in texts that seek to justify the CCP’s leadership role than in texts that take part in designing the Party’s own internal regulatory system. This discrepancy becomes particularly obvious when one considers arguments about the interpretation of intraparty regulations.Footnote 96
Intraparty regulations themselves provide some rules for their application. CCP Regulations on the Formulation of Intraparty Regulations establish a formal hierarchy between various levels of intraparty regulations.Footnote 97 According to these regulations, the CCP Constitution has the highest degree of ‘effectiveness’, and it is followed by regulations issued by high-level Party organs, the CCP Central Committee and the Central Commission for Discipline Inspection.Footnote 98 The same regulation also adopts two general principles for interpreting intraparty regulations: the lex specialis rule and the rule assigning priority for new intraparty regulations over earlier norms.Footnote 99 Some intraparty regulations authorise a specific Party organ to interpret them.Footnote 100
Apart from such rules, there is not much official guidance on the interpretation of intraparty regulations.Footnote 101 Scholarship on this topic is also scarce. As of 16 August 2019, a full text search for the terms ‘interpreting intraparty regulations’ and ‘the interpretation of intraparty regulations’ (dangnei fagui jieshi, dangnei fagui de jieshi) in the comprehensive CNKI database produces 116 articles mostly from 2017–19. The most cited of these articles had received 47 citations.Footnote 102 Only six articles contained the terms ‘interpretation’ and ‘intraparty regulations’ in their titles.Footnote 103 As Chinese scholars have noted, these figures are relatively low by the standards of Chinese legal academia.Footnote 104
Some monographs discuss the interpretation of intraparty regulations. A textbook from 2008 illustrates the application of the CCP Disciplinary Regulations through a number of case studies.Footnote 105 The textbook cites the 2004 CCP Disciplinary Regulations, which stated (and still state in their revised form) that findings of violations of Party discipline are based on ‘facts, with the CCP Constitution and other intraparty regulations as well as state laws and regulations as their criterion’.Footnote 106 As an illustration of this provision, the textbook discusses an incident where a chairperson of a state-owned enterprise approved an investment, which subsequently caused a loss to the enterprise.Footnote 107 The analysis of this case makes no reference to the methods of interpretation of intraparty regulations, nor does it discuss the relationship between facts and rule application. Instead, the textbook provides a short, factual narrative about how the overall profitability of the chairperson’s other investment decisions persuaded the Party’s discipline inspection officials not to take disciplinary action against him.Footnote 108 This account is not informed by an explicit anti-formalist method, nor is it consistently applied throughout the book. Elsewhere, the textbook applies bright-line rules without considering principles or facts beyond what the text assumes is within the scope of the literal rule.Footnote 109 The textbook also contends in a formalist manner that certain pieces of legislation and intraparty regulations are able to ‘clearly stipulate’ standards for conduct (for instance, prohibiting corruption).Footnote 110
An explicit discussion of the interpretation of intraparty regulations may be found in the above-mentioned monograph by Wang Zhenmin of Tsinghua University. Wang contends that the interpretation of intraparty regulations should follow ‘the basic principles of general hermeneutics’, which in Wang’s view are commonly accepted within the Party.Footnote 111 Under these principles, intraparty regulations first need to be interpreted so they conform to the CCP Constitution and the Party’s theories, lines, principles and policies.Footnote 112 Second, Wang asserts that intraparty regulations need to be interpreted so that they are consistent with the PRC Constitution and state laws.Footnote 113 (This requirement is also stated in the CCP Constitution and in other intraparty regulations.)Footnote 114 Third, intraparty regulations must be interpreted so as to strengthen the long-term stability of the Party’s regulatory system, instead of introducing short-term changes to the Party organisation and Party members’ conduct.Footnote 115 Fourth, Wang argues that the meaning of intraparty regulations needs to be established in accordance with the ordinary meaning of their terms, avoiding unjust and unreasonable outcomes and inconsistencies with legislative intent.Footnote 116 Fifth, intraparty regulations need to be interpreted in their ‘systemic’ or ‘logical’ context so their meaning is consistent with other intraparty regulations.Footnote 117 Finally, Wang argues that the drafting history of intraparty regulations may be used to establish the meaning of intraparty regulations.Footnote 118
The methods of interpretation outlined by Wang appear conventional both in Chinese and foreign legal thought.Footnote 119 Most tellingly, Wang stresses that the ordinary meaning of the text of an intraparty regulation sets the limits for its interpretation, and that systemic considerations, legislative history and the purposes of the intraparty regulations cannot allow the interpreter to derogate from this meaning.Footnote 120 The preference for textual interpretation over other means of interpretation is recognised also in mainstream Chinese jurisprudence. For instance, Falixue, a government-endorsed textbook on jurisprudence (which is part of an official Marxist textbook series) states that the interpretation of a legal norm begins with establishing the ordinary meaning of the text.Footnote 121 At the same time, Falixue acknowledges that ‘formal logic’ does not necessarily solve a case when there are two contradictory legal propositions at play.Footnote 122 In hard cases, the textbook urges the law-applier to engage with ‘substantive’ and ‘dialectical’ reasoning, and consider principles, values, interests and policies which inform the conflicting legal propositions.Footnote 123 The textbook also describes all legal reasoning as a creative process.Footnote 124
Another mainstream textbook on jurisprudence (also called Falixue) balances formalist and anti-formalist interpretative strategies. While emphasising the principles of legality and rationality, the textbook also explains that interpretation has to follow the principle of ‘unity of history and reality’.Footnote 125 This principle stands for interpreting a legal norm in a way that best serves the present and the future in light of the legislative history of the legal norm.Footnote 126 At the same time, the textbook acknowledges that the starting point of interpretation may be found in literal interpretation and rules of formal logic.Footnote 127 The textbook also contends that the interpretation of a text may not ‘arbitrarily’ expand the literal meaning of a rule, but that interpretation must be based on legislative intent, on the purposes of the rule and on legal principles.Footnote 128 These somewhat ambiguous statements soften the notion that a legal rule has a definite literal meaning, which sets the limits for its interpretation.
Wang’s study of intraparty regulations is thus stylistically more ‘formalist’ than the mainstream, Party-approved treatises on jurisprudence. Various journal articles on the interpretation of intraparty regulations adopt positions between self-consciously formalist textualism and a more relaxed, policy- and principle-driven approach to interpretation. While some of these texts contain nuanced, even anti-formalist, views about the role of policies and principles in the interpretative process, they rarely attack the formalist approach to interpretation explicitly. Instead, these texts are optimistic about the power of formal rules to constrain decision-making.Footnote 129
V. Reasons for the discrepancy and its implications
Both formalist and anti-formalist arguments have their uses for the CCP leadership and Party ideologues. Whereas the concept of ‘constitutionalism’ (xianzheng) is a political taboo in China,Footnote 130 formalist language allows Party leaders and ideologues to argue (and imagine) that Party organs are set up in a system of clear hierarchies and specific fields of jurisdiction. This image fits the narrative of the scientific and rational nature of the Party’s governance project.Footnote 131 Formalist language also holds out the promise of implementing the highest Party leaders’ will to the letter throughout the Party organisation, and it has informed the Party’s internal reform efforts.Footnote 132 Moreover, as is case with Chinese legal institutions,Footnote 133 Party leaders can hope to benefit from the legitimising effect of formal, rule-based processes within the Party’s internal governance. At the same time, formalist language also suits the sensibilities of those politically centrist Chinese scholars, who hope to strengthen the autonomy of the Chinese legal system without explicitly opposing the one-party state. These scholars see intraparty regulations as a means to establish rule-based boundaries within the CCP (although some of them have doubts about the viability of these efforts in China’s current political climate).Footnote 134
Anti-formalist arguments, in contrast, pave the way for maintaining and increasing the Party leaders’ influence over the judiciary and other state organs. These arguments are also useful for legitimising the Party’s extra-legal discipline control mechanism, as was seen in the lead-up to the establishment of the NSC in March 2018.Footnote 135 From the anti-formalist perspective, anti-corruption work is best conducted through holistic, self-consciously political methods in a Party-led investigation process. Some conservative-minded Party ideologues are also concerned about the perceived loss of vitality and ethical standards within the Party, which are supposedly caused by the stultifying effects of formalism.Footnote 136
Formalist and anti-formalist arguments therefore support different goals in the Party’s governance project. It is, of course, possible to insist that the two tendencies constitute a coherent governance project after all. One may, for instance, try to keep the wrong kind of formalism – nitpicky and aloof working style – distinct from the right kind of formalism, which calls for the rationalisation of the Party’s governance structure and processes. From this perspective, anti-formalist arguments appear as anomalies, mostly promoted by heterodox scholars (such as professor Jiang Shigong) in the Party’s otherwise coherent rule-based approach to governance. Interestingly, describing the Party’s political sphere in terms of unproblematised formalism would turn the seminal descriptions of totalitarian and authoritarian governments, described in Part III above, inside out. According to such an interpretation, the political sphere in a totalitarian or authoritarian government would be governed by Weberian rational legal authority, at least at the lower level of the Party organization. It is questionable how realistic such an interpretation would be in the Chinese context, given the Party cadres’ propensity to ignore formal rules even within the Party organisation.Footnote 137
There are also other possible coherence-seeking explanations. Perhaps formalism and anti-formalism find their resolution on a higher level of (‘Sinicized’) Marxist dialectics and its eternal struggle of opposite tendencies.Footnote 138 Extending this argument to the global level, the oscillation between formalism and anti-formalism can be seen as a natural part of all forms of government, including liberal democracies. One may also seek to argue (in anti-formalist terms) that whatever superficial conflicts there may exist within the Party’s ideological statements, ‘the Party’ itself needs to be understood as an organic social movement, which is able to transcend the constraints of its bureaucratic form.Footnote 139
Nevertheless, coherence should not be the last word in the analysis of the CCP’s governance ideology. The Party leaders hope to establish a system of formal rules within the CCP because ad hoc policy statements and other vaguely normative methods – such as speeches about ‘the rule of virtues’ – do not allow them to govern the Party effectively. However, instead of concluding that Party leaders have actually succeeded in building a Weberian clockwork of rational intraparty regulations within the Party, it appears that the same problems that have given rise to anti-formalist arguments in the legal system (both within China and abroad) also apply to the CCP’s internal regulatory system. According to Chinese Party ideologues, intraparty regulations are vague, obscure, internally contradictory and easily reinterpreted or ignored.Footnote 140 As is the case with all rules, intraparty regulations can also be over- and under-inclusive from the Party leadership’s perspective. Over-inclusive rules impose inconvenient restrictions on Party members’ conduct, whereas under-inclusive rules allow too much leeway for Party members.Footnote 141 Moreover, intraparty regulations include ideologically aspirational provisions, which are most likely not meant to be taken at face value. As mentioned above, intraparty regulations, for instance, instruct Party cadres to strictly observe state laws.Footnote 142 This requirement seems disingenuous, given that the enforcement of intraparty regulations is meant to take place in a self-consciously political process.Footnote 143 This process is unlikely to be infused with a deeply felt ethos of legality, let alone a ‘culture of formalism’, which is marked by resistance to power and values such as equality and transparency.Footnote 144
Most fundamentally, the incoherence of the Party’s approach to rule-based governance is due to the illiberal, yet bureaucratic, nature of the CCP’s governance project. On the one hand, Party ideology conceptualises the Chinese party-state as a dictatorship.Footnote 145 As Carl Schmitt argued, the purpose of dictatorial intervention in its various forms is its ability to suspend formal rules.Footnote 146 On the other hand, as Chinese literature on intraparty regulations is also fond of pointing out, the CCP is built as a ‘modern’ political organisation, which possesses at least some of the qualities of a rationalist bureaucracy, including rule-based governance.Footnote 147 Nevertheless, formal rules cut both ways: they not only restrain uses of power by lower-level Party members, but also provide opportunities to argue for a specific interpretation of a rule against higher-level Party cadres’ situational judgement calls. The Party both must be and cannot be governed by formal rules.
From a critical perspective, it appears that the contradictions between formalist and anti-formalist arguments reduce the overall coherence and integrity of the Party leaders’ governance project, despite their attempts to centralise power within the Party.Footnote 148 For instance, the principle of democratic centralism, which plays a key role in the CCP Constitution, requires that ‘lower-level Party organisations defer to higher-level Party organisations’.Footnote 149 Higher-level Party cadres may use this principle to insist that their subordinates adopt a specific interpretation of intraparty regulations. At the same time, it is at least theoretically possible (and, according to some Chinese scholars, not unheard of in practice) that a brave Party member objects to a particular interpretation of an intraparty regulation because it violates the (presumed) will of ‘the highest leading bodies of the Party’.Footnote 150 Faced with such an objection, a higher-level Party cadre may accuse the lower-level Party cadre of ‘formalism’ and instruct that person to ‘serve the overall circumstances’. The higher-level Party cadre may also rely on formal intraparty regulations, which instruct all Party cadres to refer significant matters to higher-level Party organs.Footnote 151 In response, the lower-level Party member may argue, also relying on the Party’s ideological doctrines, that strictly applying formal law (and, by implication, intraparty regulations) is part of the principle of ‘serving the overall circumstances’, and that this principle compels a certain course of action in this instance.Footnote 152 The Party cadre receiving the higher-level instruction may also insist – through an anti-formalist argument – that a specific interpretation of an intraparty regulation is not ‘scientifically’ valid.Footnote 153 After all, it is entirely possible that the higher-level Party cadre is seeking to further a corrupt scheme through the instructions. In response to such observations, an advocate of sociological jurisprudence may point out that intraparty conflicts will be resolved ‘in practice’. The argument here is, however, that Party ideology provides no coherent means to resolve them.
VI. Conclusion
In conclusion, rather than assuming that the political sphere within the Chinese party-state is either devoid of formal rules or effectively regulated by them, Party leaders and ideologues should be seen to oscillate between formalist attempts to establish rule-based constraints within the political sphere and anti-formalist attempts to reject such constraints. As a bureaucratic organisation, ‘the Party’ is constituted by intraparty regulations, including its constitution, and it operates according to these rules; as an instrument of dictatorship, ‘the Party’ takes the form of an organic entity (or a social movement), which exercises its world-creating will free of ‘bookish’ black-letter rules. The Party leadership, in other words, seeks to exert rule-transcending political leadership through formal rules. This contradiction, it may be presumed, is present in all political organisations, which combine bureaucratic governance methods with illiberal resistance to formal legal processes, including liberal constitutionalism. As a rhetorical tool, the dichotomy between formalism and anti-formalism offers a way to mediate this paradox for both illiberal political ideologues and their critics.
